Dave Sharma (NSW, Liberal Party, Shadow Assistant Minister for Citizenship and Multicultural Affairs) Share this | Hansard source

Competition law exists for very good reasons. It exists to protect consumers, it exists to prevent collusion between big businesses on price or supply or market behaviour that would damage competition and undermine the rights of consumers, it exists to prevent asymmetries of information that would disadvantage consumers. Any changes or exemptions to the competition laws need to be viewed with gravity because, potentially, they will disadvantage consumers and allow businesses the freedom to increase prices or lessen competition and, overall, will reduce economic welfare.

It may be, as the proponents of the Competition and Consumer Amendment (Responding to Exceptional Circumstances) Bill argue, that at times exemptions need to be made to the normal application of competition law because of exigencies, national emergencies or extraordinary circumstances. The coalition recognises—and I recognise—that temporary coordination between businesses may be necessary in a time of crisis to alleviate supply shortages, coordinate in response to national emergencies and help fulfil a government objective that might not be a commercial objective. But the important point is that such a framework already exists under existing competition law, has been tested previously and has been shown to work effectively.

We had the COVID pandemic, an emergency, or a set of extraordinary circumstances, and that lasted for close to two years and involved some remarkable disruptions to supply chains, whether it was supermarket goods, pharmaceuticals or personal protective equipment and the like. We managed well through the COVID crisis. If you look at our existing competition law framework, the ACCC was able to grant 28 authorisations or exemptions to the competition law framework during the COVID crisis, often turning those around within a matter of days, sometimes even in a matter of hours—24 hours to 48 hours. We saw that framework work. Also, during the AdBlue and urea supply crisis we saw the ACCC use the existing framework and exemptions that exist within the Competition and Consumer Act to grant urgent interim authorisation within a day. A framework exists. It has been shown to work well during the COVID crisis and others. Even before the COVID crisis, the ACCC, in a normal year, would issue somewhere between 20 and 30 exemptions or authorisations under the Competition and Consumer Act to allow behaviour that would otherwise fall foul of the Competition and Consumer Act.

We have a system that's working well, that is subject to appropriate oversight and that has proven itself fit for purpose to deal with existing crises, supply shortages and whatnot, and the question then is: Why do we need a new piece of legislation? In particular, why is a new piece of legislation which changes that system and introduces a whole new set of powers being rushed through? Why isn't the normal course of business being followed—a referral to a Senate committee and an inquiry? Why isn't there an examination—as the Senate, this chamber, is meant to do, which our committee process is designed for and intended to do—of the consequences of this legislation, whether the powers are overly broad in scope and whether parliament exercises appropriate oversight? They're all normal things that a committee inquiry would help elucidate and flesh out, but none of that is being followed this time around.

I have several concerns about this bill. Whilst we understand the intent of the bill—and we do not necessarily have an objection to the intent of the bill—the existing framework has been shown to be fit for purpose. What we have in this bill is significant changes to that framework.

Firstly, we've got provisions that will allow the Treasurer to declare, basically, an emergency or exceptional circumstances, and those powers are exceptionally broad. Once such a declaration is made by the Treasurer, it opens the door for the Australian Competition and Consumer Commission to introduce exemptions from competition law. The Treasurer's power to make this declaration is a disallowable instrument, but any exemptions that the ACCC makes following a treasurer's declaration are not disallowable. This means that they are not subject to scrutiny by the parliament and the parliament is not able to concern itself with, and apprise itself of, these exemptions to competition law—exemptions which potentially, if misused or not used correctly, could jeopardise and hurt consumers. That should be a concern. The powers of the Treasurer to make such declarations under this act would be exceptionally broad, and the ACCC exemptions are not going to be scrutinised by parliament and not disallowable.

But of perhaps equal concern is the fact that the ACCC will not need to make public its exemptions until after a period of seven days. Now, why would it take so long for the ACCC to exempt certain businesses from the normal requirements of competition and consumer law? Surely that should be of interest not only to the market and not only to shareholders but to consumers and to competitors. If the ACCC is to exempt certain players in certain sectors from the provisions of competition law and allow them to commit what would otherwise be breaches of competition law, the parliament and the public should be notified of that as soon as possible. There's no reason given in the explanatory memorandum and there has been no explanation on the floor of parliament as to why a seven-day period is required. Why could the ACCC not comply before that period?

Also, this legislation is retrospective. It will be given retrospective effect from 1 April 2026. Again, there has been no justification for why this legislation is being backdated. Is there anticompetitive conduct that has been going on that the ACCC is aware of—that we have not been told about—that would fall foul of existing laws and that this legislation would retrospectively seek to validate? We don't know. Is it in response to the Middle East fuel crisis? The conflict in Iran began on 28 February, so some 31 days before the date of this legislation's backdating. If that's the justification, why has 1 April 2026 been chosen, not some earlier date or some later date? Bear in mind there's no second reading speech on this bill yet, so no minister has actually explained why these powers are necessary. All we've got is the explanatory memorandum. All we've had from the Treasurer's office is that they need sufficient flexibility. This is a case of retrospective lawmaking, which should always be of concern to legislators and should always be of concern to the parliament and should only ever be done in exceptional circumstances. If those exceptional circumstances exist, the case should be made publicly for those exceptional circumstances—what they are.

Finally, and most importantly, there has been almost no scrutiny of this bill. It was introduced this morning. It has not gone through the House. It has come straight to the Senate. It's almost certain to have its progress hastened or guillotined. What is the justification for that? What is the emergency that is being dealt with? Is there some sort of anticompetitive conduct or collusion that has been going on that we haven't been told about that is in violation of existing competition law and that this is designed to retrospectively fix? We do not know the answer because we don't have ministers in here explaining or giving the rationale for this legislation.

We have not had the courtesy of a normal Senate committee inquiry to examine these issues. That is why the coalition is moving amendments in the Senate—because we believe an inquiry is important and in the public interest and in the national interest. Bear in mind that the ACCC, as it currently stands, has these powers, and they have been used before, during the COVID crisis and others, to exempt conduct from the normal rigours of competition law. Are these existing ACCC powers genuinely inadequate? What are the shortcomings? When have they not been able to be used as intended?

We would like a Senate inquiry to test whether the power of the Treasurer of the day to make these sorts of declarations is too broad. Should it be more narrowly defined? Should better justifications be given before such a broad declaration is made?

We would like a Senate inquiry to examine the very pertinent question of whether the ACCC exemptions should be reviewed by parliament as a disallowable instrument, as would normally be the case for subordinate legislation or legislative instruments.

We would like a Senate inquiry to examine why the ACCC would be given up to seven days to announce the details of any exemption, when such information is critical, vital and time sensitive. It's of interest not only to consumers but to the market, to shareholders and to other competitors and players in those sectors. Surely that transparency should be an urgent and immediate requirement under this legislation, not something that can wait seven days.

We would also like a Senate inquiry to examine the rationale for the retrospectivity of this legislation. Is it warranted? Why is it warranted? What has happened between 1 April and today that justifies the retrospectivity? Is there conduct that has been going on that the ACCC has not sufficiently authorised, has been unable to authorise, which falls foul of competition law, that this would give a retrospective legal blessing or sanctification to? If that is the case, the Senate should be made aware of it, the parliament should be made aware of it, the public should be made aware of it, then we can decide with open eyes, with informed knowledge, with informed consent about what exactly it is we are voting for.

We would also like a Senate inquiry to review whether these powers are properly limited in time and scope. These are powers that in the normal course of events should not be exercised. They are extraordinary powers. As I said earlier, competition law exists for a reason and, in the normal course of business, the normal rules of competition law should apply because they are there to protect consumers, to discourage and deter and penalise anticompetitive conduct, to prevent collusion, and to prevent not only misuse of market powers but also monopolistic and oligopolistic power. If we're to grant powers to the Treasurer and to the ACCC, in many cases powers that will not be reviewable by this parliament, then we want to make sure that those powers are limited and properly constrained, limited in time and scope to circumstances as well, and that is what I would expect a Senate inquiry to look at.

Finally, we would like a Senate inquiry to examine some set-and-review mechanisms, a normal part of legislative process, especially when powers like this are being introduced. We would expect that there would be reviews of such legislation and that parts of the legislation should sunset.

But more broadly, I just do not think a case has been made for this legislation. It has been dumped on us today at short notice. It has not been through the House. There has been no detailed or comprehensive public or parliamentary justification for why this legislation is needed. Frankly, the whole thing is highly suspect. I'm not conspiratorially minded but these sorts of things give me pause. Why is something being introduced in parliament and likely to be guillotined today for which there has been no parliamentary debate? Why is this piece of legislation being backdated to 1 April but only 1 April? What is going on? Why can't we have an explanation? Why can't we have an explanation from someone who is a proponent of this legislation making the case for why this is necessary? We're reasonable people on this side of the chamber. We are prepared to examine the merits of the case. We recognise we have been in a fuel and energy crisis prompted by the conflict in the Middle East, and we have shown ourselves, whether it was a support for the cut to the fuel excise or other measures, willing to support the government in a political, legislative and public sense for measures necessary to deal with this crisis. But in this instance, we are simply being left in the dark and it is hard not to be suspicious or at least be alert to something that is going on here.

As people in the Senate, my colleagues, know much better than me, it is highly unusual for a bill to be guillotined through. Unfortunately, it is becoming more of a habit under this government but it should be for left for extenuating and extreme circumstances. It is very unusual for a bill not to be referred to a Senate inquiry. It is also unusual to do so the day after the budget. I would expect the government's focus, and rightly so, to be on selling and prosecuting and making the case publicly in parliament for their budget; instead, it is introducing this piece of legislation that really doesn't have anything to do with the budget but that makes some pretty drastic changes to competition law in a retrospective fashion that threatens consumers and leaves the parliament and the public in the dark about what the motivations are. That is why we should be opposing this legislation unless it is referred to a committee for an inquiry.